District Court of Appeal could determine future of state's medical marijuana dispensaries

A Fourth District Court of Appeal panel heard arguments on Wednesday that could determine the future of medical marijuana dispensaries in California in a case stemming from an Anaheim law banning three or more people at a time from dispensing medical marijuana.

Qualified Patients Association, which had been in business for about five months when Anaheim passed its law on medical marijuana dispensaries in July 2007, sued and lost in Orange County Superior Court in September 2007. The association appealed in March.

Justices William Rylaarsdam, Richard Aronson and Richard D. Fybel heard arguments from attorneys representing the association, a medical marijuana advocacy organization, Anaheim, law enforcement authorities and a group of about 37 other cities prohibiting the dispensaries.

Proponents argue cities have no right to ban the dispensaries because voters approved dispensing medical marijuana with the passage of Proposition 215 in 1996. City law should not supersede state law, said attorney Joe Elford who represents medical marijuana advocacy organization Americans for Safe Access.

Attorney Moses Johnson, who represented Anaheim at today's hearing, said the city is not banning the dispensing of medical marijuana. Rather, the city's law prohibits any group of three people or more from dispensing marijuana, but does not prohibit one person giving another person cannabis for medicinal purposes.

City officials aimed to get rid of the storefront businesses because they believe they attract crime, said Johnson and Martin Mayer, an attorney who represented law enforcement authorities at the hearing.

Johnson and Mayer also said the operators are operating in effect as for- profit businesses charging high prices in opposition to Attorney General Jerry Brown's guidelines requiring them to be non-profit organizations,

The justices said they could not consider those arguments because the lower court has not had a hearing on those issues. Their ruling will likely reflect whether cities must go along with state laws regarding medical marijuana dispensaries and cannot pass their own ordinances.

Mayer said he thinks city officials made a mistake when they defined dispensaries and should have simply argued that state officials cannot pass laws that contradict federal legislation.

Attorney Anthony L. Curiale, who represents Qualified Patients Association, argued, though, that the state's law does not conflict with federal legislation because the state has only defined a class of people -- patients eligible for treatment with cannabis -- who will not be prosecuted for violating federal marijuana laws.

However, if the appellate court justices disagree and feel the laws conflict with each other "then we're dead in the water," Curiale acknowledged. Aronson made the same point during the hearing.

Elford acknowledged that a Los Angeles County Superior Court ruling from last month that was published Tuesday could spell trouble for medical marijuana proponents.

The case involving Darrell Kruse, who operated a dispensary in Claremont, though, is somewhat different because he was shut down for opening without a business license, Elford said.

Kruse couldn't apply for a license because medical marijuana dispensaries weren't on a list of businesses that can apply for a license, meaning he would have had to ask for a variance, Elford said.

"He didn't go about it the right way," so it may not apply in this case, Elford said. "But the handwriting on that wall is not good."